Monday, January 31, 2011

The other day I did a little post on the "Broccoli objection" to the individual mandate aspect of Obamacare. I mistakenly -- or perhaps presciently -- wrote that the author of the Broccoli objection (Judge Vinson, during oral argument in the attorneys general case against the law in Florida) had already struck down the mandate as unconstitutional. In fact he had not -- until today.

Friday, January 28, 2011

I recently read a curious essay called "The Secret is Out About Law Schools," by George Leef. The primary thrust of the article is to comment on the recent focus on whether going to law school is a good idea. Much of the article expands on the anecdotes in this widely read New York Times article by David Segal (titled "Is Law School a Losing Game?"). But he concludes with a pointed criticism of that article:

Where the article disappoints is its failure to thoroughly diagnose our glut of lawyers problem.

On its face, this seems like an unfair criticism. Segal's article could be neatly summarized, in fact, as a thorough diagnosis of the problem with our glut of lawyers -- lots of them sitting around earning nothing while their student debts come due.

But I think the confusion may be in Leef's tortured syntax. I think when he says Segal failed to "diagnose our glut of lawyers problem," he is not saying that it is a problem that there is a glut of lawyers; he is saying this glut of lawyers has a problem--and that problem was only that they had to go to law school to become a lawyer.

The reason I think this is what Leef means is that his solution for the problem, as he diagnoses it, is not to discourage people from becoming lawyers. No, his solution is to make it easier for people to become lawyers:

the right move is to open this market up to competition. States should allow individuals to attempt the bar (passing which, incidentally, is itself neither necessary nor sufficient for competence as a lawyer) no matter where or how they have studied law.

So his counter-intuitive recommendation for a market already saturated with unemployed lawyers is more competition from even less qualified new lawyers.

How does this make sense? It makes sense, to Leef at least, because letting people become lawyers without going to law school would mean that people could become lawyers without racking up all that crushing debt. In other words, it would be much less risky to try to become a lawyer.

One problem with this solution is that it doesn't actually do anything to help the many unemployed lawyers that are already out there -- the ones that had to go to law school and accumulate all that debt. In fact, if Leef had his way the situation would become even worse for that cohort -- because a fresh wave of debt-free new lawyers could flood the market and afford to work for less money. So maybe Leef has diagnosed the problem, but his medicine seems to make the disease even worse.

Over at Balkinization, Andrew Koppelman discusses what he calls "the Broccoli Objection" to the constitutionality of the individual mandate aspect of Obamacare. The Broccoli Objections was first made by U.S. District Court Judge Roger Vinson, during the oral argument preceding his decision to strike down the individual mandate:

In the broadest sense every decision we make is economic. The decision to marry. The decision to keep a job or not has an economic effect. If [the federal government] decided everybody needs to eat broccoli because broccoli makes us healthy, they could mandate that everybody has to eat broccoli each week?

Koppelman thinks this objection "rests on a simple mistake: treating a slippery slope argument as a logical one, when in fact it is an empirical one." He quotes Frederick Schauer for the proposition that "any slippery slope argument depends on a prediction that the instant case will in fact increase the likelihood of the danger case," and dismisses the Broccoli Objection because "Congress is never going to force you to eat your broccoli." Q.E.D.

I think Koppelman misunderstands the logical structure of the Broccoli Objection. It really is not a slippery slope argument -- it is a reductio ad absurdum. Here is the structure of the objection, as I see it:

Premises1) The constitution imposes significant limits on the power of Congress; 2) If the individual mandate is within Congress's power under the Commerce Clause, then, by the same principle, so would be the Broccoli mandate; 3) If the Broccoli mandate is constitutional, then there are no significant limits on Congress's power.

If all three premises are true, absurdity results because it would be both true and false that there are limits on Congress's power. So not all three premises can be true.

So is the Broccoli Objection effective? Not in my opinion. I think premise 2, and probably premise 3, are actually false. For example, you can craft a principle by which the individual mandate is within Congress's power (as necessary and proper to an otherwise clearly constitutional attempt to regulate the market for health insurance) and the Broccoli Mandate is not (because it is not necessary and proper to any otherwise constitutional exercise of Congressional power).

But the objection is best defeated on its own terms -- not by transforming it into a more-easily dismissed slippery slope argument.

...says Wisconsin Supreme Court justice Patience Roggensack, regarding her (withdrawn) request for $600 to cover mileage to study racial disparities in sentencing. This quote is from a Wisconsin State Journal article about the latest manifestation of the Wisconsin Supreme Court's internal acrimony. For a previous discussion of this topic, see this post.

Saturday, January 15, 2011

WGN reports that Tahir Malik, a Skokie, IL man -- and convicted burglar -- has been arrested for falsely posing as a lawyer for some five years. "No one suspected anything for years because he did everything right -- except obtain a law degree," said Thomas Dart, the Cook County Sheriff. Indeed, according to the Evanston Patch, many of his clients were happy with his work, which mostly consisted of representing people in traffic court. More here.

Some thoughts:

1) The most famous Illinois lawyer -- arguably the most famous lawyer, period -- also did not have a law degree. Talking about Abraham Lincoln, of course. Of course he did study the law on his own and was admitted to the Illinois bar.

3) There's been a lot of talk about the horrible job market for new law graduates -- with the insinuation that law school borders on a scam. But this convicted felon has apparently been making a go of it as a lawyer without any legal education at all. I guess his big advantage over the new law graduates is the lack of crushing debt.

Have you ever wanted to shout at someone, "You're out of your jurisdiction!!"? I have. In fact, I've done it a couple of times. In both cases, I was standing outside a bar speaking to a bouncer.

Oddly, I was reminded of these moments today when I read the case of Warrior Sports Inc. v. Dickinson Wright, PLLC, which the Federal Circuit court of appeals decided yesterday. It's a legal malpractice case stemming from a patent litigation that settled because the patent attorneys had failed to pay maintenance fees and therefore allowed the patent to lapse. The main issue for the Federal Circuit was whether there was federal subject matter jurisdiction under 28 U.S.C. § 1338 (which gives federal courts the exclusive jurisdiction over cases "relating to patents") even lthough this is fundamentally a state-law legal malpractice case. The court's answer, ultimately, is yes: there is federal jurisdiction because deciding the malpractice claim necessarily requires resolution of a substantial question of patent law.

But before it gives this answer, the court entertains a kind of meta-jurisdictional question: does it have jurisdiction to consider the jurisdictional question? This is kind of wonky, but the Federal Circuit is a special, national appellate court with limited jurisdiction to hear only certain kinds of appeals--including appeals of cases arising under § 1338. The appellee here argued that the Federal Circuit lacked appellate jurisdiction to decide the subject matter jurisdiction question because the district court had already decided that the case did not arise under § 1338. Thus, according to the appellee, the case should have been appealed to the regional circuit court of appeals, not the Federal Circuit.

The Federal Circuit disagreed, noting that it would be an "absurd result" if the Federal Circuit lacked appellate jurisdiction to determine whether a district court correctly interpreted the statute governing patent jurisdiction, even though the Federal Circuit has exclusive jurisdiction over appeals involving substantive patent law.

So we can sleep well tonight knowing that the Federal Circuit does indeed have jurisdiction to adjudicate jurisdictional judgments concerning patents.

Today the Supreme Court decided a statutory interpretation case involving bankruptcy law that turns more or less on the meaning of the word "applicable." Sexy, sexy stuff. At the risk of boring our reader(s), let me briefly explain the issue: whether an individual in bankruptcy can deduct from his disposable income—that is, the amount he's presumed to have available to pay creditors -- an amount for the ownership costs of his car, even if he owns his car outright and has no car payments.

In Justice Kagen's first published opinion, the pro-business Roberts Court predictably sided with the creditor—a big, bad credit card company—by interpreting the Bankruptcy Code to more or less incorporate an IRS regulation that makes clear that taxpayers may not take a deduction for ownership costs unless they have car payments to make.

Only one Justice had the courage to stand up and dissent on behalf of the poor debtor: Justice Scalia. He interpreted "applicable" so that simply owning a car would qualify the debtor to deduct the specified amount from his or her disposable income. To the charge that his interpretation rendered the word "applicable" superfluous, Scalia responded, "The canon against superfluity is not a canon against verbosity." Just another example of a judge using the canons of statutory interpretation to get his preferred result.

Of course I'm being facetious. I don't think this is evidence that Scalia cares about the little guy, particularly, or that either he or Kagen were perverting the canons to get their "preferred result. " But just remember this case the next time you read a story about how the Supreme Court always decides "business cases" in favor of businesses. I posit that most of them are just like this one—statutory interpretation cases that come down to judicial idiosyncrasy—not judicial ideology.

Sunday, January 9, 2011

See below for my original post about Jonathan Moss, an in-house attorney whose inactive bar status led a magistrate judge to rule that none of his communications were protected by the attorney-client privilege. Last week, in a well-reasoned opinion, the district court judge (Judge Shira Scheindlin) set aside the magistrate judge's order and held that all of Moss's communications made for the purposes of giving legal advice are privileged.

ORIGINAL POST:

This is the cautionary tale of Jonathan Moss, Esq., whose career as in-house counsel for Gucci America, Inc., came to an end earlier this year. The story, as set forth in an opinion by Magistrate Judge James L. Cott in the Southern District of New York, is almost tragic. Moss was admitted to the California bar in 1993, but he began work in non-legal positions for Pricewaterhouse Coopers and McKesson Health Solutions. In 2002, he got a job at Gucci, where the hiring officer “thought that Moss’s legal education and business experience made him well suited for the position.” Moss was the only lawyer in the office, and he soon became known as the company’s lawyer. For example, he appeared on behalf of the company in bankruptcy court, represented it in employment-related matters before the EEOC, and filed trademark applications for Gucci under a power of attorney. Eventually, he was promoted to the position of Vice-President, General Counsel of the company.

There was just one problem, lurking beneath the surface: in 1996, Moss changed his California bar license from “active” to “inactive.” The main practical effects of this change were to lower his yearly fee and exempt him from continuing legal education requirements. Well, there was one other thing: it meant he was no longer licensed to practice law in any jurisdiction.

Thursday, January 6, 2011

As you noted, the recent deal between President Obama and Senate Republicans had some winners and losers. But, as Joe Posnanski recently noted in a profile of former Washington Generals coach Red Klotz, defining who is or is not a loser can be difficult.

Another example of this difficulty is found in President Obama'srenomination of former Wisconsin Supreme Court Justice Louis Butler to become a district court judge in the United Stated District Court for the Western District of Wisconsin. Justice Butler had been a loser on the deal to get judges confirmed in December.

The article doesn't explain why this nomination has a better chance of being confirmed than last time. Given that the opposition to the nomination was based, at least in part, on the same things that led to Justice Butler's defeat when seeking reelection, one would not be blamed for thinking this renomination is also doomed. Despite this, as the article notes, the renomination "was expected."

So what are we to learn from this turn of events? Perhaps the lesson is that persistance pays off. At the moment, however, the only lesson I learned is that I really don't understand how Washington D.C. works.

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